The constitutionally provided mandate of a separate school jurisdiction and of a separate school is to provide education in a school setting that the separate school board considers reflective of Roman Catholic (or, rarely, Protestant) theology, doctrine, and practices. This mandate can manifest itself in the Program of Studies and the curriculum, exercises and practices, and staffing. The limits of this mandate are determined by the application of the Canadian Charter of Rights and Freedoms, and judicial decisions.

The different experience in Ontario as compared to Alberta and Saskatchewan is principally the result of the same constitutional provisions having effect on settlement at different stages in Canadian history.

The Constitution of Canada does not establish separate school education as a natural or unconditional right available to all. Only Protestants or Roman Catholics, whichever is the minority faith population compared to the other in a community, can consider the establishment of separate school education. The separate school establishment right is not available to citizens of any other faith (such as Orthodox Christians, Jews, Mormons, Hindus, Muslims, or Sikhs). In addition, the minority faith must establish that they wish to leave the public school system and create a separate school system.

When France's colonies in North America were conquered by Britain in the early 1700s, British authorities were faced with the dilemma of ruling over large Roman Catholic community. This was significant, as Catholic-Protestant violence in England and Ireland had been nearly constant since the beginning of the English Reformation. Since the Glorious Revolution of 1688, however, Protestanism had been the official religion of the British state as evidenced by the Act of Settlement 1701 which forbade Catholics to become monarch. This was the beginning of a long period of anti-Catholic laws and policies in the British Empire, most famously expressed through the Irish "Penal" Laws. In the case of the New World French there was also the fear that the new population was potentially more loyal to a foreign king, that of France, than to Britain.

The first French colony to fall to the British was Acadia on the Atlantic coast in 1710. Here the problem of dealing with a French Catholic community was solved through the simple but brutal method of expulsion. The Expulsion of the Acadians saw some 12,000 Acadians forcibly resettled to the Thirteen Colonies, France, and England. Some later returned, but their land and villages had been given away to Anglo-Protestant settlers.

When the much larger colony of Canada fell in 1759, deportation was seen as less practical. Instead British officials promised to allow French Canadians to keep their religion and customs:

His Britannick Majesty, on his side, agrees to grant the liberty of the Catholick religion to the inhabitants of Canada: he will, in consequence, give the most precise and most effectual orders, that his new Roman Catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit. His Britannick Majesty farther agrees, that the French inhabitants, or others who had been subjects of the Most Christian King in Canada, may retire with all safety and freedom wherever they shall think proper...

This guarantee was later threatened on several occasions by assimilationist legislation such as the Royal Proclamation of 1763, but this was largely reversed by the Quebec Act of 1774.

After the American Revolution, the new colony was flooded with Anglo-Protestant refugees. The colony was then divided by Constitutional Act of 1791, with the Anglican Church becoming the established religion in Upper Canada (now Ontario) while Lower Canada remained legally secular but dominated by the Catholic church. Inevitably, somes people ended up on the "wrong" side of this division, with a French Catholic minority in Upper Canada and an Anglo-Protestant minority in Lower Canada. Schools of the era were almost entirely parochial schools controlled by the various churches. Only when government mandated standardization and public funding for education were introduced did this then become a political issue. Interestingly, by the time of Confederation in 1867, the majority of Catholics in Upper Canada were of Irish extraction as well as English speaking.

In the 1840s Methodist minister and Reformist politician Edgerton Ryerson championed "common schools" that would educate the children of all faiths under one system. He became Chief Superintendent of Education for Upper Canada in 1844. However, Ryerson was not able to convince the Catholic minority and grudgingly agreed to clauses in his education reforms that allowed for minority-faith schools within the publicly funded system. The Catholic case was strengthened by the fact that the Protestant minority in Lower Canada had already[when?] won the right to a separate system.

The institutionalization of separate schools in Canada West (Upper Canada before 1840) was secured by the Scott Act of 1863, but with the caveat that rural Catholic schools could only serve an area with a radius of 3 miles (4.8 km).[1]

In the Maritime provinces, similar issues were at play.

In 1864, the government of Nova Scotia reformed its system of education, withdrawing support from all schools which were religious or which used any language other than English as a medium of instruction.[2]

In New Brunswick under the Parish Schools Act of 1858, there was only loose supervision from the central board of education, and in practice each school was run independently by its board of trustees, and most schools boards were dominated by partisans from one religion or another. Textbooks were not standardized; Protestant-majority regions used the textbooks of the Irish National Schools while the English-spreaking Catholic areas used the books of the Irish Christian Brothers. The few Acadian schools used French-language textbooks from Canada East (Lower Canada).

These pre-existing rights for tax-funded minority faith schools were then part of the constitutional negotiations surrounding Canadian Confederation in the 1860s. At the Confederation conferences, Roman Catholic Archbishop Connolly of Halifax argued for separate Catholic and Protestant school systems across the entire federation, administered by the central government. This was forcefully rejected by French Canadian delegates from Canada East, who demanded provincial control over education.[3] The compromise was Section 93 of the Constitution Act, 1867 which allows the federal government to intervene only to protect minority schools which are already established. Apart from that caveat, the Constitution Act, 1867 provides that education is a matter of exclusive provincial jurisdiction.

The relevant provision for Ontario is s. 93(1) of the Constitution Act, 1867 as originally enacted.[4] For Alberta and Saskatchewan, the relevant provision is s. 93(1), as amended by the Alberta Act[5] and the Saskatchewan Act,[6] respectively.

As held by the Supreme Court of Canada in Adler v. Ontario, the provincial education power under section 93 of the Constitution Act, 1867 is plenary, and is not subject to Charter attack. As Iacobucci J. noted, it is the product of a historical compromise crucial to Confederation and forms a comprehensive code with respect to denominational school rights which cannot be enlarged through the operation of s. 2(a) of the Charter. It does not represent a guarantee of fundamental freedoms.

Section 93 of the Constitution Act, 1867 only applies to provinces, not territories. Instead, the right to separate schools is protected in the three territories by the federal Acts of Parliament which establish those three territories. The Northwest Territories Act,[7] the Yukon Act[8] and the Nunavut Act[9] all provide that the territorial legislatures can legislate with respect to education, provided they respect the right of religious minorities (whether Protestant or Roman Catholic) to establish separate schools.

School boards funded by the province consist of 29 English Catholic and 8 French Catholic boards, as well as 35 non-denominational public school boards (31 English public, 4 French public). There is one Protestant separate school jurisdiction in Ontario, the Burkevale Protestant Separate School, operated by the Penetanguishene Protestant Separate School Board. In Ontario, this determination was largely made throughout the province by the time of Confederation.

The public school system in the province was historically Protestant but was gradually transformed into a secular public system. Prayer in public schools was banned in the early 1980s.

Since the 19th century, funding for the Roman Catholic separate school system was provided up to Grade 10 under the British North America (BNA) Act. In 1984 the government of Premier William Davis extended full funding to include the last three (Grades 11–13 (OAC)) years of Roman Catholic secondary schools after having rejected that proposal fifteen years earlier. The first funded academic year occurred in 1985–86, as grade 11, and one grade was added in each of the next two years.

The right to have a publicly funded separate denominational school system continues to be guaranteed by Section 93 of the 1982 Constitution Act to Roman Catholics in Ontario.[10]

A province-wide newspapersurvey conducted between 1997 and 1999 in 45 dailies indicated that 79% of 7551 respondents in Ontario favoured a single public school system, but no widely supported movement to amend the Constitution has developed.

The issue of extending public funding to other religious schools later came up in the Ontario general election, 2007; however no changes to the law have been made as of May 2011.

In Alberta and Saskatchewan, there continues to be large areas of the province where separate school education has never been established. In these two provinces, there is a clear and well-known process for determining the wishes of the members of the minority faith.

In Alberta, for example, the geographic basis for separate school establishment is the underlying public school district. At any time, three or more residents, either Protestant or Roman Catholic, who believe that they are members of the minority faith locally, can initiate the process. A census must be conducted to confirm that they are, in fact, the minority faith locally. When the census confirms minority status, a meeting must be widely advertised. The purpose of meeting is to provide a venue at which all of the local members of the minority faith can debate the pros and cons of leaving the public school jurisdiction and creating a separate school district. At the end of the meeting, a vote may be held on the question of establishment.

If the majority of the minority vote in favour of establishment, the establishment becomes a fact. If the majority of the minority vote against establishment, it does not proceed. The process is civil, democratic, and binding on the minority of the minority. A decision at the meeting against establishment precludes a number of the minority faith who may have favoured establishment from continuing for themselves. (At the same time, any decision against establishment has no term: proponents can begin almost immediately to organize a subsequent effort.)

In Alberta, wherever a separate school system exists, individuals who are of the minority faith that established the separate school system must be residents, electors, and ratepayers of the separate school system (the Schmidt decision). There is no way by which they could opt to be supporters of the public school system except by leaving the minority faith. In Saskatchewan and Ontario, members of the minority faith may choose to be supporters of the public school system, notwithstanding their faith.

Retention of separate school boards with public funding was a major issue of contention in the negotiations that led to Canadian confederation, chiefly as a result of ethnic and religious tension between the (largely French-speaking) Roman Catholic population in Canada and the Protestant majority. The issue was a subject of debate at the 1864 Quebec Conference and was finally resolved at the London Conference of 1866 with a proposal to preserve the separate school systems in Quebec and Ontario. The way in which this agreement was written into the British North America Act, 1867 was to the effect that the condition of education in each colony (or territory) at the time it entered Confederation would be continued thereafter.

The province of Newfoundland and Labrador had a separate school system until 1997. At the time that the Dominion of Newfoundland joined Canada on March 31, 1949, the schools of that Dominion were all organized on a confessional basis with separate denominational schools for Roman Catholics, Seventh-day Adventists, Salvationists, Pentecostals, and an integrated stream which oversaw the schooling for children of many members of so-called "main stream" Protestant denominations. All of these schools received grants from the provincial government for their operation. Ownership of the schools ranged from parochial (owned and operated directly by a Church) to ownership and operation by a separate not-for-profit society. The constitutional obligation on the Province to maintain this system of confessional schools was eliminated by the Constitution Amendment, 1998 (Newfoundland Act),[14] following a provincial referendum in 1997. The Province then established a single non-denominational public school system.

Separate school rights have often been criticized as contrary to the spirit of official multiculturalism, primarily, but not exclusively, because only adherents of the Protestant or Roman Catholic faith have these constitutional rights and only in some provinces and territories. In addition, where separate school systems exist, employees or prospective employees who are of the minority faith have more employment opportunities. (All other things being equal, a member of the minority faith can be employed by either the public board or by the separate board, while anyone else can be excluded from employment by the separate system.) On November 5, 1999, the United NationsHuman Rights Committee condemned Canada and Ontario for having violated the equality provisions (Article 26) of the International Covenant on Civil and Political Rights. The Committee restated its concerns on November 2, 2005, when it published its Concluding Observations regarding Canada's fifth periodic report under the Covenant. The Committee observed that Canada had failed to "adopt steps in order to eliminate discrimination on the basis of religion in the funding of schools in Ontario."

From 1833 in Nova Scotia, and from 1850 in Upper Canada, provision was made for the establishment of separate schools for "Blacks or People of Colour".[16] In 1886, Ontario clarified its law, so that such establishment could only occur after an application had been made by at least five Black families in the community.

In Ontario, separate schools for Blacks continued until 1891 in Chatham, 1893 in Sandwich, 1907 in Harrow, 1917 in Amherstburg, and 1965 in North Colchester and Essex. By 1960, there would still be seven formal Black school districts and three additional exclusively Black schools in Nova Scotia. The Ontario and Nova Scotia laws governing black separate schools were not repealed until the mid-1960s.